News of the Justice Department’s announcement of an investigation into the leaking of classified information by the New York Times will no doubt bring claims of the administration trying to deflect attention away from the legalities of actions associated with their post 9/11 surveillance activities.

The Justice Department said on Friday that it had opened a criminal investigation into the disclosure of classified information about a secret National Security Agency program under which President Bush authorized eavesdropping on people in the United States without court warrants.

The investigation began in recent days after a formal referral from the security agency regarding the leak, federal officials said, speaking on the condition of anonymity because of the secrecy of the investigation.

Since the NYT made its revelation, the debate has not involved much scrutiny as to the legalities (let alone impacts upon national security) associated with the leaked information and eventual disclosure.

The president last week denounced in strong language the leaking of information about the agency’s program, saying: “My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we’re discussing this program is helping the enemy.”

Privacy advocates on Friday said the leak investigation should be set aside, at least for now, in favor of an investigation of the warrantless eavesdropping itself.

If there’s going to be an investigation of the warrantless eavesdropping, then by all means an investigation of the leaks themselves needs to be held in conjunction.

What kind of message would be delivered in downplaying the damage that can result from these types of leaks and disclosures?

Doesn’t the press bear a degree of responsibility in taking into account the ramifications of such activities (publishing classified information)?

I asked on my own blog and never got an answer to this question: what damage?

Are we to believe that Al Qaeda has such respect for our system of laws they assumed we weren’t eavesdropping on them? Andm, given that the FISA law gave essentially unlimited leeway to the NSA, why on earth would they have reachged that innaccurate conclusion?

No one has yet explained how Osama would, upon hearing the news that the NSA was conducting warantless wiretaps, be surprised. Do we imagine that Al Qaeda obtained legal analysis indicating to them that the conversations they were having were safe because of restrictions in American law? Do we suppose that Osama woke up, opened his New York Times, read the story and said, “Oh my God, it’s just possible that the Americans are tapping our phone calls! Everyone hang up!”

There’s two bits of damage:
1. Don’t assume the terrorists are 10 feet tall. Some of them are very good at security, many others are not. By publishing, more of the dummies get incentivized to get better.
2. There’s a reasonable time lag between capture and the start of follow-on surveillance. That takes into account physical limits but also legal procedural roadblocks. That time lag is the safe time that associates have to go to alternate covers or bolt for cover. It’s not so unlikely that there was a mismatch between what the terrorist thought their safe time was and what it was in reality. The NY Times article clarified that point to the benefit of the terrorists.

Lutas:
I’m sorry, but you are left to assume that Al Qaeda assumed we followed a strict interpretation of our law, an interpretation that the president himself claims is invalid.

Only if Al Qaeda believes 1) they know the law, and 2) believes that the NSA agrees with that interpretation, and 3) believes the NSA obeys that interpretation, and 4) assumes that the 72 hour rule is somehow insufficient to allow surveillance during any time gap, can we conclude that this story might conceivably have caused damage. I think all four of those assumptions are unlikely, and taken together they are absurd.

NIce try, but this doesn’t come close to justifying the nuts who are screaming “treason!” and demanding someone be hung.

In my opinion the leak was not illegal revelation of top secret material at all – it was whistleblowing about illegal activity the government was secretly engaging in.

Whether or not something is labeled top secret – if it is not legal, it SHOULD be revealed and shut down, the sooner the better.

Also I believe it was criminal for the NYT to sit on it for as long as they did – I’m guessing someone from the right side of the fence either paid them off to delay it or stopped it from within the organization itself – wouldn’t want revelations of corruption and lies to affect the 2004 election results, would we?

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